dissenting.
As discussed in the majority opinion, this appeal presents a question concerning the constitutionality of § 27-12-103(a), W.S. 1977, which, except for culpable negligence, extends the immunity granted employers under the Worker’s Compensation Act and Art. 10, § 4 of the Wyoming Constitution, to co-employees who negligently injure other co-employees while in the course of employment. This disputed section was added to the worker’s compensation statutes by the legislature in response to our holding in Markle v. Williamson, Wyo., 518 P.2d 621, 625 (1974), which says that the act only extends the immunity to the contributing employer and not a co-employee. The majority opinion correctly notes, however, that the constitutional issue discussed in Markle was not supported by a majority of the court, and the case was limited to a question of statutory construction only.1 Thus, the question left undecided in Markle comes to us directly in this case. In response thereto, the majority of the court have “once again” ignored the original purpose of the Wyoming Worker’s Compensation Act by reaffirming the power of the legislature to incorporate into the scheme elements that were clearly neither contemplated nor intended by the 1914 amendment to Art. 10, § 4. I say “once again,” because the position I expressed in my dissent in Stephenson v. Mitchell, Wyo., 569 P.2d 95, 100-112 (1977), applies to this case, and it is worth revisiting. With my Stephenson analysis in mind, I would have affirmed the trial court’s holding that § 27 — 12-103(a) is unconstitutional as being in violation of Art. 10, § 4 of the Wyoming Constitution.
*1245The people of Wyoming amended Art. 10, § 4, of the Wyoming Constitution in the early part of the century in order to make way for the legislature to structure a comprehensive “worker’s compensation” statute. See Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P.2d 981 (1918). The need for an amendment came out of the fact that the original language of Art. 10, § 4 prohibited the enactment of any law limiting the amount of damages to be recovered for causing injury or death and rendering void contracts wherein employees undertook to waive their right to recover for injury or death. As referenced by the majority,2 Art. 10, § 4, before amendment, read:
“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void.”
The amendment made room for the worker’s compensation concept by authorizing the legislature to enact a scheme whereby the employee gave up all of his or her common-law rights of action against the employer, in return for the guarantee that the employer would contribute to a fund from which the employee could receive direct compensation for all work-related injuries except those where it could be shown that the employee was culpably negligent. From the inception of worker’s compensation in Wyoming, this court consistently construed the statutes as enacting a form of industrial insurance which authorized compensation in the nature of accident insurance rather than in the nature of damages. Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981); Markle v. Williamson, supra, Zancanelli v. Central Coal & Coke, supra; Hotell-ing v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925). The decisions of this court even went so far as to ignore provisions in the statutes which could not be reconciled with the concept of industrial accident insurance.3 Through these opinions we have irrefutably established the proposition that the Wyoming Worker’s Compensation Act stemmed from contract and not from notions of tort. As we said in Markle v. Williamson, supra, 518 P.2d at 624:
“To say that workmen’s compensation in Wyoming is in the nature of insurance is to say it stems from contract. Indeed, the clear implication in Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989 is that our Workmen’s Compensation Act is in contract and not in tort.”
Not until the decision in Stephenson v. Mitchell, supra, did this court permit the law of tort to seep back into the worker’s compensation scheme. I pointed this out in my dissent in that case. In Stephenson, the majority of the court upheld the reimbursement provision of § 27-54, W.S.1957, now embodied in § 27-12-104, W.S.1977, which requires the injured worker to reimburse the compensation fund with proceeds from any recovery received from a third party arising out of an injury for which benefits had been paid. The provision was upheld on the basis that such decisions involving the benefit schedule were within the province of the legislature to enact. Stephenson v. Mitchell, supra, 569 P.2d at 98-99. I dissented from that holding because, as I pointed out, it was never within the contemplation of the framers of the amendment to Art. 10, § 4, that the employee would in any manner contribute to the fund. 569 P.2d at 110. Such a provision interjected concepts of tort into the scheme *1246that were inconsistent with the settled and prevailing view that “workmen’s compensation” was in the nature of industrial accident insurance. To allow the employer to recoup his contributions by requiring reimbursement from the employee after recovery from a third party who was at fault, resulted in embracing a concept which says that the original benefits received from the fund were in the nature of damages for a tortious injury, rather than for payment under a contract of insurance. It amounted to a limitation on the right to recover damages for injury or death, which limitation was not contemplated or authorized by the amendment to Art. 10, § 4, and was, in my mind, clearly unconstitutional.
Likewise, in the present appeal, the majority have permitted the legislature to extend the immunity or protections of the worker’s compensation program to areas not given or intended by the constitutional amendment which grants authority to the legislature to enact a worker’s compensation statute. The wrong conclusion is reached, in this case, by asserting a new purpose for worker’s compensation — that being the advancement and support of employee harmony. Never before have we asserted such a legislative purpose, because it is inherently inconsistent with the idea that worker’s compensation derives from contract and not tort and, furthermore, it embraces a faulty factual assumption. Proof of this becomes clear when the facts of Markle are revisited. The notion of employee harmony — when applied to Markle, as an example — emerges as a pure figment of judicial imagination. In that case, any prior good management-employee relationship had long since been shattered through the unbelievable and continuing negligence of Supervisor Markle prior to the time when the tank blew up killing Williamson.
The majority support their decision to the effect that § 27-12-103 is constitutional by concluding that to permit the employee to recover from' a negligent co-employee has the undesirable result of allowing the employer to receive a direct benefit because the recovering employee will then have to reimburse the fund under § 27-12-104, W.S.1977. Thus, says the majority opinion, the negligent co-employee would be paying for the injury rather than the employer. This is exactly the fault I found with the Stephenson majority opinion wherein it was held that third-party recovery moneys were to go for fund reimbursement. That was a reimbursement obligation that was never contemplated either by the Constitution or the supporting statutes. Now — in this appeal — the majority say that one employee should not be permitted to recover from another employee because it has the effect of causing a party to the contract of worker’s compensation insurance to reimburse the fund when that was not the intention of the legislature. Where is the consistency? We wouldn’t find ourselves in this position if we had not injected the law of tort into industrial accident contract law in the first place. The original sin was committed when we first gave approval to a statute which directed the employee to reimburse the fund in Stephenson v. Mitchell, supra.
Similar to the reimbursement provision attacked in Stephenson, § 27-12-103 incorporates elements into worker’s compensation never intended by the amendment to Art. 10, § 4, and, in my mind, is likewise an unconstitutional assertion of authority by the legislature. All the amendment contemplated that the employee would give up in return for contributing employer immunity, were his or her right to sue the employer. It was never contemplated that in the employee’s trade-off with the employer, the employee would give up his or her right to sue others who caused injury or death. This fact has led us to consistently announce that worker’s compensation was a form of industrial accident insurance. Through the majority opinion, the court is now saying that the validity of the insurance contract is contingent on the employee agreeing not to sue a co-employee except for culpable negligence. For me, it is a holding not supported by the law and in derogation of the limitations on legislative power found in Art. 10, § 4.
The purpose of worker’s compensation in Wyoming was to provide the worker or his *1247family with speedy and adequate relief for injury or death, all without respect to any but culpable negligence on the part of the worker, in return for which he or she agrees to relinquish all rights of action against the employer who contributes to the fund in his or her behalf. The system was not designed to preclude the worker from pursuing his or her common-law remedies against negligent third parties — including negligent co-employees. The amendment clearly limited the power of the legislature to create a system of direct compensation between the employee and contributing employer whereby it was envisioned that the only sacrifice which the employee was called upon to make was the giving up of his or her rights of action against contributing employers. No power exists for the extension of immunity to co-employees under Art. 10, § 4.
I would have held that § 27-12-103 violates the proscriptions of Art. 10, § 4, and, therefore, I would have affirmed.
. The split in Markle v. Williamson, supra, occurred because two members of the court had concluded that Art. 10, § 4, of the Wyoming Constitution precluded any limitation on the common-law right of the employee to sue a negligent co-employee for damages. The dissenters from that portion of the opinion felt that it was not an issue presented by the case. 518 P.2d at 625-626 (opinion of Guthrie, J., concurring and dissenting in part, with whom McClintock, J., joined).
. See n. 4 of the majority opinion, at 1236-1237.
. For instance, in In Re Byrne, 53 Wyo. 519, 86 P.2d 1095 (1939), and Hotelling v. Fargo-Western Oil Co., supra, we held that the employer could not avoid payment of a claim through the device of claiming he was free of fault and that a third party was directly responsible for the injury or death, because such a device could not be reconciled in any way with the idea that “worker’s compensation” was in the nature of an insurance contract. In expressing such a viewpoint, we were forced to directly ignore the literal import of former § 8 of Chapter 124, S.L. of Wyoming 1915 which specifically permitted the use of such argument as an avoidance device.